JAMES DAMRON V. KENTUCKY MAY MINING COMPANY, ET AL.
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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76 .28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
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RENDERED : SEPTEMBER 23, 2010
NOT TO BE PUBLISHED
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2010-SC-000070-WC
JAMES DAMRON
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ON APPEAL FROM COURT OF APPEALS
CASE NO . 2009-CA-000867-WC
WORKERS' COMPENSATION BOARD NO. 06-00024
KENTUCKY MAY MINING COMPANY;
HONORABLE JOHN COLEMAN,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
An Administrative Law Judge (ALJ) awarded increased income benefits in
this reopened claim, having rejected a university evaluator's opinion that the
increase in the claimant's permanent impairment rating based on hearing loss
did not result from his workplace exposure to hazardous noise and focused on
the evaluator's opinion that it resulted from aging. The ALJ reasoned that the
medical evidence continued to show a pattern of hearing loss that was
compatible with workplace exposure to hazardous noise and that KRS
342.7305(4) does not require age-related impairment to be excluded when
awarding income benefits. A divided Workers' Compensation Board reversed .
The claimant appeals the decision by a divided Court of Appeals to affirm the
Board.
We affirm. The claimant had the burden at reopening to prove a postaward change of disability "due to a condition caused by the injury ."' Although
the pattern of his hearing loss remained compatible with that caused by
hazardous noise at reopening, the university evaluator opined that the
increased impairment did not result from the claimant's workplace exposure to
hazardous noise . He did so not because he thought that the increase was agerelated but because occupational hearing loss does not progress after the
hazardous exposure ceases and because the claimant sustained no additional
exposure after retiring in 2003 . The testimony rebutted KPS 342 .7305(4)'s
presumption of causation . The ALJ lacked the authority to disregard the
opinion because the claimant failed to go forward with evidence to overcome it.2
He failed to meet his burden of proving causation as a consequence .
The claimant was born in 1948 and has an eighth-grade education with
no specialized training. His work history consisted of operating various types
of equipment in underground coal mines for 28 to 30 years. He filed his initial
claim based on hearing loss on January 4, 2006, stating on the Form 103
application that he had not returned to work.
1 KRS 342.125(1)(d) .
2 KRS 342 .315(2) .
KRS 342.7305(2) authorizes income benefits based on an impairment
rating of at least 8%. Dr. Hieronymus evaluated the claimant on his own
behalf in October 2005 and assigned a 12% impairment due to occupational
noise exposure . He indicated that the hearing loss "would be progressive with
further exposure to noise ." Having evaluated the claimant for the employer,
Dr. Touma diagnosed a severe high-frequency hearing loss in February 2006 to
which he assigned a 1% impairment . He stated that testing established a
pattern of hearing loss compatible with that caused by workplace hazardous
noise . Drs . Jones and Shinn performed the evaluation required by KRS
342 .7305(3) at the University of Kentucky in March 2006 . Dr. Jones assigned
a 7% permanent impairment rating based on a pattern of hearing loss that was
consistent with workplace hazardous noise exposure .
The litigation culminated in a settlement agreement that an ALJ
approved on May 11, 2006 . The parties agreed to settle the claim for $1,000,
which included $100 for the waiver of vocational rehabilitation, $100 for the
waiver of future medical expenses, and $800 for income benefits. They also
agreed that the claimant was last exposed to workplace hazardous noise while
working for the defendant on March 5, 2003 .
Filed on August 30, 2007, the claimant's motion to reopen alleged a
change of disability as shown by objective medical evidence of a worsening of
impairment.3 He supported his claim for increased benefits with a report from
Dr. Hieronymus, who evaluated his hearing loss in June 2007 and assigned a
3
KRS 342 .125(1) (d) .
14% impairment rating. Noting the claimant's long history of exposure to
workplace noise, he opined that the tests established a pattern of hearing loss
compatible with that caused by hazardous noise exposure in the workplace .
Dr. Touma evaluated the claimant for the employer in September 2007,
noting his complaint that his hearing had worsened, and assigned a 10%
impairment rating based on hearing loss. Dr. Touma testified when deposed
that he had discovered a typographical error in his 2006 report and that the
1% impairment rating reported at that time should have been 8%. Noting that
the claimant did not report any additional workplace noise exposure since the
2006 evaluation, he stated that two medical explanations for the 2% increase
in impairment since 2006 were a "test/retest variation" and aging. He also
stated that the 2% increase would not be due to workplace noise exposure
sustained as of the date the claimant last worked. He acknowledged on crossexamination that the claimant's entire hearing loss, including the additional
2% found in 2007, was consistent with the configuration of noise-induced
hearing loss. He noted, however, that activities such as using a lawnmower or
shooting a gun also expose an individual to noise and can affect hearing.
Drs. Jones and Shinn performed the university evaluation required by
KRS 342 .7305(3) in April 2008 . Having performed comprehensive audiometric
testing, Dr. Jones assigned a 13% impairment rating. Although he noted that
the tests showed a pattern of hearing loss compatible with that caused by
hazardous noise exposure in the workplace, he stated that any progression of
hearing loss since the claimant's retirement in 2003 was not due to
occupational noise exposure but to aging. Dr. Jones explained that
occupational hearing loss does not progress after exposure to workplace
hazardous noise ceases and that the most accurate test of his occupational
hearing loss was that performed closest to his retirement.
The claimant testified that he had not worked since March 2003 and had
not been exposed to loud noise since then. He testified that he did go deer
hunting about two or three times a year but that he always used hearing
protection. He complained of continued difficulty hearing when he watches
television or attempts to hear people speak when there is background noise.
The issues submitted for a decision included, among other things, the
claimant's entitlement to increased benefits and the cause of any worsening of
his condition. Noting that all of the physicians assigned an impairment rating
greater than 8% at reopening and reported a pattern of hearing loss compatible
with that caused by hazardous workplace noise exposure, the ALJ relied on AK
Steel Corporation v. Johnston4 for the principle that age-related impairment is
not excluded from an impairment rating when awarding income benefits for
occupational hearing loss . As a consequence, the ALJ awarded income benefits
based on the 13% impairment assigned by Dr. Jones and credited the employer
for income benefits paid under the settlement. As amended pursuant to the
employer's petition for reconsideration, the award provided benefits from the
4 153 S.W.3d 837 (Ky. 2005) .
filing of the motion to reopen through the balance of the 425-week period that
commenced on March 5, 2003, the date of last exposure .
The employer appealed, asserting that the ALJ misapplied AK Steel
Corporation v. Johnston, which did not concern a reopening or address the
requirements of KRS 342 Among those requirements is proof that a
.
.125(1)(d)
worsening of the injured worker's condition results from the effects of the workrelated injury. The employer argued that the ALJ erred by failing to require the
claimant to prove that the increased impairment found at reopening resulted
from his workplace noise exposure . The Board's majority agreed,
characterizing as a "red herring" the fact that medical evidence showed a
pattern of hearing loss at reopening that remained compatible with the pattern
caused by hazardous noise exposure . 5
AK Steel Corp. v. Johnston concerned whether age-related impairment
must be excluded from an impairment rating when calculating the income
benefit in an initial claim for noise-induced hearing loss. In Johnston the
university evaluator estimated the portion of two workers' hearing impairments
that was due to their age by consulting tables that were appended to an
amendment to the Federal Noise Control Act. He stated that the tables were
based on statistical averages, which might or might not apply to a given
individual; that he considered use of the tables to be "speculative;" and that he
did not attribute the estimated portion of either worker's impairment to aging.
5
See KRS 342.7305( 4) .
He also stated that the method used in the hearing loss chapter of the AMA
Guides to the Evaluation of Permanent Impairment does not account for age.
The Johnston court noted that KRS 342 .7305(4) affords a presumption of
causation; excludes impairment due to tinnitus; but makes no reference to
age-related impairment. The court concluded, therefore, that the legislature
intended for awards to be based on an impairment rating as determined by the
Guides, without an apportionment between age-related and work-related
causes . Neither of the claims at issue in Johnston concerned a reopening or
addressed the requirement that increased impairment at reopening must result
from the injury that was the subject of the initial claim or the type of evidence
that would rebut KRS 342 .7305(4)'s presumption at reopening.
KRS 342.125(1) (d) permits a claim to be reopened and an award to be
modified based on proof of a post-award change of disability "due to a condition
caused by the injury." As defined by KRS 342 .0011(1), the claimant's injury
consisted of an exposure workplace hazardous noise that ceased on March 5,
2003 and was the proximate cause producing a hearing impairment . The ALJ
misapplied Johnston because the question to be decided in this reopening was
not whether impairment from aging must be excluded when considering the
claimant's entitlement to benefits but whether he met his burden of proving
that the post-award progression of his hearing impairment resulted from his
exposure to workplace hazardous noise.
KRS 342.7305(4) states as follows:
When audiograms and other testing reveal a pattern of
hearing loss compatible with that caused by
hazardous noise exposure and the employee
demonstrates repetitive exposure to hazardous noise
in the workplace, there shall be a rebuttable
presumption that the hearing impairment is an injury
covered by this chapter, and the employer with whom
the employee was last injuriously exposed to
hazardous noise shall be exclusively liable for benefits.
The claimant admitted that he sustained no exposure to workplace
hazardous noise after he quit work on March 5, 2003. Although the pattern of
his hearing loss at reopening remained compatible with that caused by
hazardous noise, Dr. Jones (the university evaluator) testified that occupational
hearing loss does not progress after the exposure to workplace hazardous noise
ceases; that any progression of hearing loss since the claimant's retirement in
2003 was not due to occupational noise exposure ; and that the most accurate
test of his occupational hearing loss was that done most closely to his
retirement. KRS 342 .7305(4) afforded the claimant a presumption of causation
in the initial claim, but Dr. Jones's uncontradicted testimony as a university
evaluator rebutted the presumption at reopening and compelled a finding for
the employer .
KRS 342 .315(2) states that a university evaluator's clinical findings and
opinions "shall be afforded presumptive weight . . . and the burden to overcome
such findings and opinions shall fall on the opponent of that evidence." As
construed in Magic Coal Co. v. Fox,6 KRS 342.315(2) provides a rebuttable
6
19 S.W.3d 88 (Ky. 2000).
presumption that a university evaluator's clinical findings and opinions are
accurate and does not shift the ultimate burden from the party upon whom it
was cast. A worker who seeks increased benefits at reopening has the burden
to prove that the greater disability (i.e., impairment rating) supporting the
motion "is the direct and proximate result of the injury for which compensation
is sought."7
As the party opposing the university evaluator's opinion concerning
causation, KRS 342 .315(2) placed on the claimant the burden to go forward
with evidence to overcome Dr. Jones's opinion. His failure to do so and the
lack of any other evidence to contradict the opinion precluded the ALJ from
disregarding it. The record compelled a legal conclusion favoring the employer
because the claimant failed to meet his burden to prove that the increase in
impairment that occurred after March 5, 2003 was the direct and proximate
result of workplace hazardous noise exposure that occurred on or before March
5, 2003 .
The decision of the Court of Appeals is affirmed.
All sitting. All concur.
7
Whittaker v. Ivy, 68 S.W.3d 386, 388 (Ky. 2002) . See also Sky Top Coal Co. v. Roark,
407 S.W.2d 411 (Ky. 1966) and Jude v. Cubbage, 251 S .W.2d 584 (Ky. 1952), which
were decided under the pre-1996 "occupational disability" standard.
COUNSEL FOR APPELLANT,
JAMES DAMRON:
Miller Kent Carter
Miller Kent Carter 8s Michael Lucas, PLLC
P.O. Box 852
Pikeville, KY 41602
COUNSEL FOR APPELLEE,
KENTUCKY MAY MINING COMPANY:
David H. Neeley
Neeley Law Office, PSC
290 East Court Street
Prestonsburg, KY 41653
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